United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
E. KNOWLES, III UNITED STATES MAGISTRATE JUDGE.
the Court is the Motion for Appointment of Counsel. [Doc.
#147]. The District Court referred this motion to the
undersigned for a report and recommendation. Having reviewed
the motion, the case law, and the docket, IT IS
RECOMMENDED that the motion be denied.
history and current status of the case indicate that the
motion should be denied. The record establishes that Brown
was originally indicted on November 17, 2011 on various drug
charges. [Doc. #1]. On June 18, 2013, he pleaded guilty to
one count of the indictment, and on February 19, 2014,
judgment was entered sentencing Brown to 135 months in prison
as to Count 1, with the other counts being dismissed pursuant
to a plea agreement. [Doc. #103]. During this time, Brown was
represented by counsel, Juana Marine-Lombard. In his plea
agreement, Brown waived all of his direct appeal rights,
except to challenge a sentence beyond the statutory maximum.
[Doc. #70 at pp. 3-4]. In addition, Brown had only fourteen
(14) days from entry of judgment to file any direct appeal
under Federal Rule of Appellate Procedure 4(b)(1)(A). Brown,
proceeding pro se at this point, timely appealed the
judgment on February 25, 2014. [Doc. #104].
March 18, 2015, the Fifth Circuit dismissed the appeal as
frivolous. [Doc. #124]. Brown, now represented by a federal
public defender and later by private counsel, filed a motion
to vacate his sentence under 28 U.S.C. § 2255. [Doc.
#130]. The District Court denied the motion and refused to
grant a certificate of appealability. [Doc. #142]. Brown,
again proceeding pro se, appealed that order on
February 16, 2017. [Doc. #144]. On April 5, 2017, the Fifth
Circuit dismissed that appeal for want of prosecution. [Doc.
#146]. Eight months later, on December 8, 2017, Brown filed
this motion under review.
appears that no direct appeal is available and that Brown
seeks appointment of counsel in connection with - not an
appeal - but a second not yet filed but anticipated motion
challenging his guilty plea and/or sentence under 28 U.S.C.
§ 2255. Consistent with constitutional requirements,
Federal Rule of Criminal Procedure 44(a) requires appointment
of counsel for indigent persons only “through
appeal.” Thus, Brown's current motion is governed
by 18 U.S.C. § 3006A(2)(B), which provides in pertinent
part, “Whenever the United States magistrate judge or
the court determines that the interests of justice so
require, representation may be provided for
any financially eligible person who - is seeking relief under
section 2241, 2254, or 2255 of title 28” (emphasis
added). The use of the word “may” in this
provision clearly makes the decision to appoint counsel in
these circumstances discretionary with the court. See
United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir.
1995) (holding that the Sixth Amendment right to counsel
extends only through defendant's first appeal, after
which the decision whether to appoint counsel rests in the
discretion of the district court).
case law indicates that factors to be considered in the
court's exercise of this discretion include the potential
for merit in the claims, the futility of further
investigation, the defendant's ability to articulate and
present his own claim, and the nature of the claim.
Oliver v. United States, 961 F.2d 1339, 1343 (7th
these factors in this case militates in favor of denying the
motion. Brown's motion to appoint counsel mentions no
particular claim, and the record reveals nothing that might
indicate any potential claim that might have merit. While
Brown questions the investigative methods of certain federal
investigators currently under indictment in this Court, he
makes no mention of any specific fact that would question the
legitimacy of his plea or his sentence. Further investigation
of factors concerning Brown's sentence would be futile in
light of the full investigation already conducted by this
Court's probation office in its presentence investigation
report and the review of that report already conducted by
defendant, his appointed counsel at that time, and the
District Court. Brown appears to have sufficient ability to
present his own post-conviction claims in a Section 2255
of the Federal Rules Governing Section 2255 Proceedings makes
appointment of counsel mandatory at this stage of criminal
proceedings only “[i]f an evidentiary hearing is
required, ” at which time “the judge shall
appoint counsel for a movant who qualifies for the
appointment.” Since no new Section 2255 motion has yet
been filed, there is no basis on which an evidentiary hearing
might be contemplated. Accordingly, IT IS
RECOMMENDED that the Motion for Appointment of
Counsel [Doc. #147] be DENIED.
OF RIGHT TO OBJECT
must be: (1) specific, (2) in writing, and (3) served within
fourteen (14) days after being served with a copy of this
report. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 1(a), 6(b)
and 72(b). A party's failure to object bars that party
from: (1) entitlement to de novo review by a district judge;
and (2) appellate review of the un-objected-to factual
findings and legal conclusions accepted by the district